The ACLU of Indiana has reached a private settlement agreement with the Indiana Department of Corrections (IDOC) in a class-action lawsuit that challenged a policy prohibiting prisoners from receiving sexually explicit materials or publications containing “graphic nudity.”

At issue was IDOC Administrative Procedure No. 02-01-103. The lawsuit alleged that portions of the procedure were unconstitutional. While not admitting it had violated any federal law, the IDOC agreed to change its policy to settle the case.

The settlement specifies that prisoners will not be allowed to receive publications that contain frontal nudity, but can receive magazines that depict people in lingerie or bathing suits. Such a result was necessary because “current case law does not, in my opinion, allow for a strong argument that there is a constitutional right to receive publications that contain pictures that regularly feature frontal nudity,” ACLU attorney Kenneth J. Falk informed the class members.

The new IDOC procedure contains examples of commercial magazines that prisoners can receive because they do not contain “depictions of nudity or sexually explicit conduct on a routine or regular basis or promote [themselves] based upon such depictions.” Examples include National Geographic; Our Body, Our Selves; swimsuit issues of sports magazines, and lingerie catalogues.

The new policy “also provides that material that contains writing, not pictures, will not automatically be excluded.” Instead, such publications will be reviewed on a case-by-case basis to determine whether they “pose a threat to security or that facilitates criminal activity.”

Additionally, the revised procedure specifies that “Printed matter may not be excluded from an adult facility solely on the grounds that it is obscene or pornographic, unless it is obscene under Indiana law.”

“I believe this settlement is as good, if not better, than would be won if the case went to trial,” Falk stated. The ACLU will receive $18,000 in attorney’s fees.

The parties entered into a private settlement agreement rather than a court-enforced consent decree to avoid requirements under the Prison Litigation Reform Act. The IDOC cannot change the revised procedure for two years without giving 30 days notice to the ACLU. During the two-year period, the settlement “can be enforced in a state court as a breach of contract action or a violation can result in starting the federal lawsuit again,” Falk explained.

The district court found the settlement to be fair and reasonable in an order entered May 28, 2009. See: Meisberger v. Donahue, U.S.D.C. (S.D. Ind.), Case No. 1:06-cv-01047-LJM-DML.